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Dobbeck: Leaves of absence raise questions for employers

Published: Wednesday, March 12, 2014 5:56 p.m. CDT • Updated: Wednesday, March 12, 2014 5:59 p.m. CDT

The Family Medical Leave Act of 1992 protects employees against job loss in the event of a family or personal medical issue, among other things. The leave applies to companies with 50 or more employees in a 75-mile radius and the protected leave lasts up to 12 weeks. 

Worker’s Compensation Insurance guarantees any employee who is injured on the job protection against loss of wages as the result of the injury or illness. There is no legal minimum or maximum period of coverage. Someone injured on the job may never be able to return to work.

Once an event triggers any of the above leaves, the employer is left with questions and decisions. What happens if my employee does not return after the 12-week FMLA leave? What about insurance and COBRA? How long must I guarantee the job? What if we really want the employee to return even after the initial leave period expires?  What happens if he returns from Worker’s Compensation Leave and then requests FMLA leave? We know she is never returning, must we keep her as an employee?  Will termination effect her disability payments?

First, remember that mandated leaves carry a minimum requirement to protect employees from loss of their job or benefits earned before the leave began. There is nothing in the law that demands termination if an employee does not return in the specifically allotted time frame. Employers are free to extend any leave if they choose to do so. On the other hand, employees should be given clear guidelines to follow in the event their leave has the possibility of extending past the guaranteed amount of time.  

Employers should talk over their policy with the health insurance carrier. Will they continue to provide coverage even though the employee is out on leave longer than allowed under FMLA? Asking this question will help the employer better understand when COBRA needs to be initiated. The health insurance carrier may require the employee to be placed on COBRA at the beginning of a leave that is not considered FMLA, so make sure to discuss any other leave policy with them.

Also, remember that employers may not retaliate against someone who has submitted a claim for protection under Worker’s Compensation or FMLA. In other words, an employee cannot be fired for collecting WC or taking advantage of their rights under FMLA. If there are other documented performance issues or documented policy violations, and if the employee claims injury on the day he/she was to be terminated for other reasons, it is best to continue with the termination. In these situations, the employer is best served by discussing the matter with their workers’ compensation insurance carrier and an attorney.    

A word about concurrent leaves. If an employee is out due to Maternity, Workers’ Compensation or Disability Leave, the law allows the employer to charge the employee’s leave time against the FMLA entitlement. If the employee is unable to work due to a ‘serious health condition,’ the time off would qualify under FMLA. By initiating FMLA at the start of the leave, employers are protected from an employee returning from one leave and beginning another. Also, employers may require an employee to substitute all earned vacation, personal or sick leave during FMLA. Administering all leaves concurrently will limit the employee’s total time away from work.

When working through leave issues, remember to think ahead and plan for the unexpected. Communicate with all vendors who are directly involved including health, disability and worker’s compensation insurance carriers. By planning and clearly communicating now, potentially hazardous situations may be avoided later.

• Karla Dobbeck is president of Human Resource Techniques Inc. Reach her at 847-289-4504 or email karlad@hrtechniques.biz. 

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